Local 182

National Labor Relations Board - Board Decisions

Dec 13, 1954

110 N.L.R.B. 1357 (N.L.R.B. 1954)

LOCAL 182 1357
that this area in West Virginia is generally a labor surplus area and
unemployment there was high during 1949, 1950, and the spring of
1951, we are convinced that the Trial Examiner correctly concluded
that Bramer's failure to earn more money than he did was not because
,of his lack of effort, and that there were "special circumstances"
justifying the large sum of back pay.
[The Board determined that back pay is due Benjamin S. Bramer in
the net amount of $5,299.65.]
MEMBER RODGERS took no part in the consideration of the above
Supplemental Decision and Determination.
LOCAL 182, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREI-IOUSEMEN AND HELPERS OF AMERICA, AFL, AND ROCCO F.
DEPERNO AND CLAYTON LACEY and PILOT FREIGHT CARRIERS, INC.
Case No. 3-CD-9. December 13, 1954
Decision and Determination of Dispute
STATEMENT OF THE CASE
This proceeding arises under Section 10 (k) of the Act, which pro-
vides that "whenever it is charged that any person has engaged in an
unfair labor practice within the meaning of Section 8 (b) (4) (D)
of the Act, the Board is empowered and directed to hear and deter-
mine the dispute out of which such unfair labor practice shall have
arisen. ..."
On June 8, 1954, Pilot Freight Carriers, Inc., herein called Pilot,
filed with the Regional Director for the Third Region a charge alleg-
ing that Local 182, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, AFL, herein called
Local 182,' and Rocco F. DePerno and Clayton Lacey had engaged
in and were engaging in certain activities proscribed by Section 8
(b) (4) (D) of the Act. It was alleged, in substance, that Local
182 and its agents, DePerno and Lacey, had induced and encouraged
employees of Pilot and of James Doti, d/b/a Whitesboro Cartage Co.,
herein called Whitesboro, to engage in a strike or in a concerted re-
fusal-to perform certain work in the course of their employment, with
an object of forcing Pilot to assign certain particular work to mem-
bers of Local 182 rather than to Pilot's own employees.
Thereafter, pursuant to Section 10 (k) of the Act and Sections
102.71 and 102.72 of the Board's Rules and Regulations, the Regional
Director investigated the charge, and provided for an appropriate
1 The International body is sometimes referred to herein as the Teamsters.
110 NLRB No. 215.
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hearing upon due notice to all parties. A hearing was held before
Bernard Marcus, hearing officer, on various days between July 26 and
August 18, 1954. All parties appeared at the hearing. They were
afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to adduce evidence bearing on the following questions :
(1) Whether or not Local 182 was demanding of Pilot that certain
work assigned by Pilot to its employees be assigned to Local
182 members; (2) whether or not as part of the alleged attempt to
enforce such demand, Local 182 had induced or encouraged employees
of Pilot to engage in a concerted refusal to perform certain work
tasks; and (3) whether or not Local 182 had induced or encouraged
employees of the Norwich Pharmacal Company concertedly to refuse
to handle goods transported to such company by Pilot.
Pilot complains that it was denied a full opportunity to be heard
because it was not permitted to inquire into Local 182's alleged induce-
ment or encouragement of Whitesboro employees. It contends that
the hearing officer's ruling foreclosing such inquiry was based upon
erroneous grounds.2 Local 182, in turn, complains that it was preju-
diced by the hearing officer's ruling that evidence of Local 182 activi-
ties at the Norwich Pharmacal Company's plant was within the scope
of the inquiry in this proceeding. Local 182's claim on this matter is
grounded upon the fact that the charges herein make no reference to
events or happenings at the Norwich Pharmacal Company, and that
the inclusion of evidence on such events in this record imposed an
undue burden of "defense" upon it.3 Local 182's contention as to the
hearing officer's error in holding this evidence to be admissible forms
the real basis of the specific motions and appeals hereafter described.
At the close of Pilot's presentation, counsel for Local 182 first moved
that the hearing officer strike from the record all reference to events
or happenings at the Norwich Pharmacal Company. The hearing
officer reserved ruling on this motion for the Board, and stated that
counsel should proceed with its presentation. Counsel refused to
proceed, stating that he desired to obtain a definitive disposition of
the matter from the Board before doing so. He requested an ad-
2 The hearing officer stated on the record that he had been directed by the General
Counsel to foreclose the line of inquiry in question in view of ( 1) the existence of a "hot
cargo" clause in the contract between Local 182 and Whitesboro , and (2) the Board's
holdings in the Conway 's Express ( 87 NLRB 972 , enfd. 195 F . 2d 906 ( C. A. 2) ), and Pitts-
burgh Plate Glass Company ( 105 NLRB 794) cases , as to the legal effect of similar "hot
cargo" clauses in the circumstances presented in such cases
3 The Norwich Pharmacal Company incidents, among others, formed the subject of a
separate charge filed by Pilot alleging Local 182's violation of Section 8 (b) (4) (A) and
(B) of the Act. Based upon these charges, the General Counsel issued a complaint
against Local 182, on these separately charged violations (Case No. 3-CC-40). Most of
the evidence contained in the instant record on the Norwich Pharmacal Company events
was actually taken at the hearing held on the Case No. 3-CC-40 complaint, before Trial
Examiner Charles Schneider. At such hearing Pilot and Local 182 were respectively
represented by the same counsel as represented each of them here. Such evidence was
made part of this record pursuant to the parties' stipulation.
LOCAL 182 1359
journment of the hearing pending his perfection of an interlocutory
appeal to the Board, and the latter's ruling disposing of the appeal.
The hearing officer granted counsel sufficient time to file an interlocu-
tory appeal, and upon the objections of counsel for Pilot refused
to continue the case further. When Local 182's counsel insisted he
could not proceed until the Board had ruled on his appeal, the hearing
officer closed the hearing.
After the closing of the hearing, the Board notified the parties of
its decision that Local 182's request for special permission to file an
interlocutory appeal from the hearing officer's rulings was denied.
The Board stated that such denial was without prejudice to Local
182's right again to present the issues for Board consideration pur-
suant to Section 102.73 of the Board's Rules and Regulations.
Thereafter, Pilot filed its brief on the merits of the case, which brief
includes a statement of Pilot's exception to the hearing officer's ruling
as set forth above.
On September 15, 1954, counsel for Local 182 filed a motion for
reopening of the hearing for the purpose of "further cross-examina-
tion of Petitioner's [Pilot's] witnesses and for the purpose of pre-
senting evidence in opposition to Petitioner's case."
On September 22, 1954, Pilot submitted a request for leave to file
a cross-motion to strike Local 182's September 15 motion, and an
alternative request that Local 182's motion be denied.
The Board has duly examined the procedural objections of the
parties in light of the entire record. It finds it unnecessary to decide
whether or not the rulings of the hearing officer-apart from that
closing the hearing-were in fact erroneous. As indicated below, evi-
dence which all parties agree to be relevant in this proceeding is
enough in and of itself to establish both the existence of a dispute
over work assignments between Pilot and Local 182 and the basis of a
reasonable belief that Local 182 has engaged in and is engaging in
activities violative of Section 8 (b) (4) (D) of the Act. This evi-
dence goes to the nature of Local 182's demands upon Pilot, and to
Local 182's inducement of Pilot's employees concertedly to refuse to
perform certain work.
As we do not rely upon the Norwich Pharmacal Company inci-
dents, inclusion in the record of such evidence cannot, in any event,
prejudice Local 182 4 Further, in view of our determination of the
dispute in a manner favorable to the position of Pilot, the error, if
any, of the hearing officer's exclusion of the additional evidence sought
to be adduced by Pilot can have no prejudicial effect.
We come then to Local 182's objection to the hearing officer's closing
of the hearing in the face of its request for an adjournment, and to its
4 We therefore deny the motion of Local 182 to strike such evidence physically from the
record
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ancillary motion for reopening the hearing so that it might now pre-
sent evidence on the merits. We are satisfied from the record that,
inclosing the hearing, despite Local 182's opposition to such action,
the hearing officer did not abuse his discretion, and did not preclude
Local 182 from presenting such evidence as it desired to adduce. Its
position as to the impropriety of evidence relating to Norwich Phar-
macal Company incidents was wholly preserved upon the record.
Such position could not in any way have been affected by Local 182's
presentation of evidence. Moreover, even assuming the validity of
counsel's position that an undue litigation burden was imposed upon
him by the admission of evidence with respect to Norwich Pharmacal
Company events, this would not explain why counsel refused to pro-
ceed to present such evidence as he may have desired on the incidents
involving Pilot employees detailed below.
We conclude, accordingly, that the hearing officer's rulings are free
from prejudicial error. They are hereby affirmed. We find, further,
that counsel for Local 182 was afforded full opportunity at the hear-
ing to present the evidence it now requests permission to adduce at a
further hearing. We therefore deny its request for reopening.
Upon the entire record in this case, the Board makes the following :
FINDINGS OF FACT
1. Pilot Freight Carriers, Inc., a North Carolina corporation, is a
motor carrier engaged in the transportation of general commodities in
interstate commerce under a certificate of public convenience and ne-
,cessity issued by the Interstate Commerce Commission for a non-
scheduled carrier. Pilot annually transports merchandise in inter-
state commerce having a value in excess of $1,000,000. Annual reve-
nues exceed $1,000,000. Pilot purchases materials and supplies for its
.own use from points outside the State of North Carolina. It imports
into the State of North Carolina, annually, materials and supplies
having value in excess of $100,000. We find that Pilot is engaged in
commerce within the meaning of the Act.
2. Local 182, and Local 391, of the. Teamsters, are each of them
labor organizations within the meaning of the Act.
3. The dispute :
(a) The facts
Pilot has a large number of drivers in its employ who operate "over-
the-road" trucks. In the performance of their duties, they haul com-
modities over appreciable distances to and from Pilot's terminal in
North Carolina to various points in the northern States, including the
city of Utica, New York. Goods handled by Pilot drivers destined for
,or originating from the Utica, New York, area were delivered or
LOCAL 182 1361
picked up under the following conditions existing prior to the time the
instant controversy arose.
Pilot's drivers made all pickups and deliveries of goods destined
for or emanating from points located at more than 25 miles from the
city limits of Utica, New York. When handling goods destined for
points of consignment within the city of Utica or within the 25-mile
radius around Utica, Pilot drivers delivered their loads to the docks
of Whitesboro, a local cartage company. At this point, Pilot drivers
merely "checked in" at the office maintained by Pilot at the Whites-
boro premises , without unloading the trucks. Under an oral arrange-
ment between Pilot and Whitesboro, the latter then "took over" the
local hauls, and Whitesboro's employees did all the work necessary to
complete the delivery to Pilot's "local" customers . Where "local"
customers desired to ship goods through Pilot to "nonlocal" points,
Whitesboro employees picked up the goods, brought them in to
Whitesboro's docks, and transferred them to Pilot trucks. Pilot
drivers then picked up the loaded trailers or trucks.
Pilot drivers were covered, at all times here material, by a collective-
bargaining contract between Pilot and Local 391 of the Teamsters.
This contract provided for the "exclusive" recognition of Local 391
by Pilot as the bargaining agent of the drivers. Whitesboro's em-
ployees were covered, at all times here material, by a contract between
Whitesboro and Local 182 of the Teamsters. Pilot had no collective-
bargaining relations with Local 182. However, sometime in March
1954, Local 182 approached one of Pilot's managerial agents in Utica
and demanded that Pilot negotiate with it for a local and "over-the-
road" contract. Thereafter, beginning April 1, 1954; a series of meet-
ings were held in April, May, and June between representatives of
Pilot and of Local 182. At such meetings, Pilot was represented by
Walter Gowens, its director of safety personnel, and other persons;
Local 182 was represented by Ralph DePerno, its business agent, and
Clayton Lacey, its assistant business agent. According to Gowens,
DePerno, on behalf of Local 182, demanded at such meetings that,
among other things, Pilot "divide" a portion of the runs between the
north and south between its present complement of drivers and "Utica
men"; that Pilot sign both a local and over-the-road contract with
Local 182; and that it cease using "nonlocal" drivers for pickup and
delivery work in Local 182 "territory." Local 182 defined its " terri-
tory" as including a 50-mile radius around the city of Utica, New York.
Gowens further testified that at the April 19 meeting, DePerno threat-
ened that if Pilot refused the demands made upon it, Pilot would have
a "strike" on its hands beginning on May 3. Lacey, on the other hand,
testified that, to his best recollection, DePerno did not make any spe-
cific demands that Pilot assign a portion of the north-south runs to
338207-55-vol. 110-87
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Utica drivers, and that he did not hear DePerno threaten the May 3
strike action at the April meeting. It is undisputed that Pilot refused
Local 182's demands.
On May 3, and at various other dates during May and June 1954,
Local 182 invoked the "hot cargo" clause of its contract between it and
Whitesboro, as a result of which the employees of the latter refused
to handle Pilot goods. During such strikes against Pilot goods, Local
182 maintained pickets at Pilot's Utica terminal, which was located on
Whitesboro's premises as above described.
On May 17, 1954, during one of these "strike" periods, Pilot, because
of the strike, directed several of its over-the-road drivers coming in
from the south with goods destined for the Utica area to proceed to
Binghamton, New York, with their hauls, rather than to the Utica
terminal. On that date, 2 of Pilot's trucks, each of which was manned
by 2 men, were stopped by one William Belden, a Local 182 assistant
business agent, as they were en route to Binghamton. Without stating
the reasons therefor, Belden advised the Pilot drivers either to leave
their trucks there on the road or to take them in to the Utica terminal.
The drivers called Pilot Terminal Manager Jones for directions.
They were instructed by Jones to bring their trucks in to the Utica
terminal. When the Pilot drivers did so, they found Local 182 pickets
there. They "checked-in" to Pilot's office, and when they came out,
they asked Local 182's Assistant Business Agent Clayton Lacey, who
was on the premises, what was the reason for the "strike." Accord-
ing to Huffman, one of these Pilot drivers, Lacey replied that Local
182 was seeking half of the Pilot runs in and out of Utica. Lacey also
advised Huffman that his truck would have to remain in Utica until
the "strike" was settled. Some 2 or 3 days later, Pilot's manager in-
structed Huffman to come in to the Utica terminal to pick up the
truck and "bob-tail" it out. When Huffman arrived, however, to pick
up the truck, he found that another truck, bearing no insignia, had
been parked in such a way that it blocked his truck and another Pilot
tractor and trailer. Huffman and other drivers were therefore unable
to move their trucks out of the Utica terminal for several days.5
(b) The contentions of the parties
Pilot contends that, by the above conduct, and by other acts, Local
182 violated Section 8 (b) (4) (D) of the Act.
Local 182 has presented no brief on the merits, claiming that it
has been deprived of an opportunity to present its "case." Certain
of the objections and questions posed by Local 182's counsel at the
hearing indicate, however, that Local 182 apparently regards its
agent's stoppage of Pilot trucks outside of Utica as conduct outside
5 This "strike" was concluded on May 21.
LOCAL 182 1363
the proscription of Section 8 (b) (4) (D ) ; and the failure of the
Pilot drivers to deliver their hauls to Binghamton , and their delivery
of the same to Utica, as being action taken at Pilot's direction rather
than a failure to perform work assignments which Local 182 agents
"encouraged or induced ." Apparently , also, Local 182 denies that
Lacey or any of its agents advised the Pilot drivers on May 17, or at
any other time, that an object of its "strike" against Pilot goods was
to acquire for Utica men a portion of the runs assigned by Pilot to its
drivers. It suggests , rather, that the sole purpose of its contacts with
the Pilot drivers and its interference, if -any, with the accomplishment
of Pilot drivers' work tasks on that date, as expressed to the Pilot
drivers, was to obtain the membership transfer of one-half the men
already employed by Pilot from Local 391 to Local 182.
(c) Applicability of th e statute
The charge, which was duly investigated by the Regional Director,
alleges a violation of Section 8 (b) (4) (D) of the Act, and the
Regional Director was satisfied , upon the basis of investigation, that
a violation of the section had been committed. Our review of the
record in this proceeding is directed solely to determining whether the
evidence adduced in support of the charge, if true, establishes a prima
facie case of the violation of Section 8 (b) (4) (D). More specifi-
cally, we must decide whether there is reasonable cause to believe that
Local 182 induced and encouraged employees to engage in a concerted
refusal to perform work for the purpose-proscribed by Section 8
(b) (4) (D) -of forcing or requiring Pilot "to assign particular work
to employees in a particular labor organization or in a particular
trade, craft, or class rather than to employees in another labor organi-
zation or in another trade, craft , or class. . . ."
We are satisfied on the record before us that there is sufficient evi-
dence to warrant a reasonable belief that Local 182 objected to Pilot's
failure to employ Utica drivers for a portion of the north -south runs,
and for the pickup and delivery work in the 25- to 50-mile radius
surrounding the city of Utica, and that it sought Pilot's agreement
to employ Utica drivers for such work. We are satisfied , also, that
Local 182 engaged in activities in aid of this objective which con-
stitute the kind of "inducement or encouragement" of employees to
cease performing work which Section 8 (b) (4) (D) proscribes.
Such finding, we believe, can appropriately be predicated upon those
activities of Local 182's agents which involved the stoppage of Pilot
drivers en route to Binghamton and the later statements of Local 182
agents to such drivers to the effect that they would not be able to
move their trucks out of Utica until the dispute was settled .6 Hence
6 Cf. Direct Transit Lines, Inc, 92 NLRB 1715.
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we need not and do not pass upon the legal effect of other activities
of Local 182 involving employees of Whitesboro or those of the Nor-
wich Pharmacal Company.
For reasons indicated in the Direct Transit Lines case, supra, foot-
note 6, we find no merit to Local 182's suggestion that, although Local
182 agents stopped the Pilot trucks while en route to Binghampton
and directed the drivers to come in to the Utica terminal, such inter-
ference should be discounted in view of the fact that the final decision
to have the drivers come in to the Utica terminal, rather than to
proceed to the Binghamton terminal, was made by Pilot agents.
We conclude that the dispute in question is properly before us for
a determination in a proceeding under Section 10 (k) of the Act.
(d) The merits of the dispute
It is clear from the record that Local 182 has no immediate or deriva-
tive rights under any existing contract upon which it could predicate
any lawful claim to the work in dispute. There was, and is, no privity
of contract between Pilot and Local 182 requiring the assignment of
work to Local 182. Nor does it appear that Local 182 has any right
in any outstanding certification or order affecting this work.
These facts are determinative of the present dispute. The Board
has specifically held that Sections 8 (b) (4) (D) and 10 (k) do not
deprive an employer of the right to assign work to his own employees,
and that these sections impose no restrictions on the employer's free-
dom of hire, subject only to the requirement against discrimination
as contained in Section 8 (a) (3).7 Consequently, in determining
this dispute, it is sufficient on the facts before us that Pilot assigned
the work to its own employees and that Local 182 acted to force or
require Pilot to assign the work to its members.
Accordingly, we find that Local 182 is not lawfully entitled to force
or require Pilot Freight Carriers, Inc., to assign the work in dispute
to members of Local 182, rather than to employees of Pilot Freight
Carriers, Inc.
Determination of Dispute 8
Upon the basis of the foregoing findings, and the entire record in
this case, the Board makes the following determination of dispute
pursuant to Section 10 (k) of the Act :
1. Local 182, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL, and its agents are not
and have not been lawfully entitled to force or require Pilot Freight
7 Juneau Spruce Corporation , 82 NLRB 650 ; Direct Transit Lines , Inc., supra.
8 For the reasons stated in his dissent in Biagi Fruit & Produce Company, 107 NLRB 223,
Member Murdock would quash the notice of hearing in this proceeding . He, however, deems
himself bound by the majority decision in Biagi.
AIELLO DAIRY FARMS 1365
Carriers, Inc. to assign over-the-road work, or the work of making
pickups and deliveries in the 25- to 50-mile radius surrounding the
City of Utica, New York, to members of Local 182 rather than to
employees of Pilot.
2. Within ten (10) days from the date of this Decision and Deter-
mination of Dispute, Local 182 shall notify the Regional Director for
the Third Region, in writing, as to what steps the Respondent Local
182 has taken to comply with the terms of this Decision and Deter-
mination of Dispute.
Louis AIELLO, BENJAMIN AIELLO, JOSEPH AIELLO, MARIO AIELLO,
ANTHONY AIELLOj THERESA AIELLO, RAFFAELA AIELLO and JENNY
AIELLO CO-PARTNERS D/B/A AIELLO DAIRY FARMS and CONGRESS OF
INDUSTRIAL ORGANIZATIONS. Case No. 3-CA-637. December 13,
1954
Decision and Order
On August 14, 1953, Trial Examiner Horace A. Ruckel issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other alleged unfair
labor practices, and recommended that the complaint be dismissed as
to these allegations. Thereafter, the Respondent filed exceptions to
the Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations, except insofar as they are inconsistent with
the findings and conclusions set forth below.
1. We find, as did the Trial Examiner, that the Respondent had
discharged on September 20, 1952, employees William Gascon, Byron
Colburn, and Felix Chapman, and on November 12, 1952, employee
Hazel Hartwick, because of their union membership and activities, in
violation of Section 8 (a) (3) of the Act.
2. We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (1) of the Act by the following statements and conduct
of its supervisory and managerial personnel: (a) Benjamin Aiello's
interrogation of employees Thompson and Colburn on September 20,
1952, as to who was starting the Union; (b) Louis Aiello's interroga-
tion of Hazel Hartwick on November 12, 1952, as to whether she had
110 NLRB No. 205.